18-005513 Department Of Health vs. Anthony Chambers, C.N.A. Status: Closed Recommended Order on Wednesday, February 13, 2019.

Summary: Petitioner failed to timely file his petition for hearing. Further, Petitioner failed to prove equitable tolling. Therefore, he lacked standing to initiate an administrative hearing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

Petitioner,

vs. Case No. 18 - 5513

ANTHONY CHAMBERS, C.N.A.,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2018), 1/ on December 4, 2018, by

video teleconference with sites in Tallahassee and Sebastian,

Florida.

APPEARANCES

For Petitioner: Ross Daniel Vickers, Esquire

Florida Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Anthony Chambers , pro se

Apartment 604

1946 Otterbein Avenue

Cocoa, Florida 32926

STATEMENT OF THE ISSUE

The issue in this matter is whether Respondent timely

requested an a dministrative hearing to contest an Administrative

Complaint.

PRELIMINARY STATEMENT

On June 28, 2017, Petitioner, Department of Health (the

Ð Department Ñ ), issued an Administrative Complaint against

Respondent , Anthony Chambers ( Ð Respondent Ñ ), for alleged

m isconduct.

On April 11, 2018, Respondent requested an administrative

hearing disputing the material facts alleged in the

Administrative Complaint.

On October 17, 2018, the Department referred the matter to

the Division of Administrative Hearings ( Ð DO AH Ñ ) and requested

assignment to an Administrative Law Judge ( Ð ALJ Ñ ) to conduct a

chapter 120 evidentiary hearing. The Department specifically

asked DOAH to determine whether Respondent timely submitted to

the Department his Election of Rights form reques ting an

administrative hearing.

The final hearing was held on December 4, 2018. The

Department presented the testimony of Kristen Summers.

Department Exhibits A through I were admitted into evidence.

Respondent testified on his own behalf. Respondent d id not

present any exhibits.

A one - volume Transcript of the final hearing was filed with

DOAH on December 26, 2018. At the close of the hearing, the

parties were advised of a ten - day timeframe following receipt of

the hearing transcript at DOAH to file po st - hearing submittals.

The Department filed a Proposed Recommended Order , which was duly

considered in preparing this Recommended Order.

FINDING S OF FACT

1. The Department is the state agency charged with

regulating the practice of nursing assistance in Florida. See

§§ 20.43(3)(g)8 . and 464.201 - .208, Fla. Stat.

2. Respondent is a certified nursing assistant ( Ð CNA Ñ ) in

the S tate of Florida, having been issued certification number

CNA 95701.

3. On June 28, 2017, the Department filed an Administrative

C omplaint against Respondent Ó s CNA certificate. The

Administrative Complaint alleged that Respondent committed

Ð unprofessional conduct Ñ in April 2017 while working at

Titusville Rehabilitation & Nursing Center.

4. On June 29, 2017, the Department mailed t he

Administrative Complaint to Respondent Ó s address of record with

the Department via Certified U.S. Mail. At that time,

Respondent Ó s address of record was 844 Faull Drive, Apartment A,

Rockledge, Florida 32955.

5. On August 2, 2017, the Administrative Complaint was

returned to the Department as Ð unclaimed. Ñ

6. On both August 24, 2017, and September 5, 2017, the

Department attempted to personally serve the Administrative

Complaint on Respondent at the 844 Faull Drive, Rockledge,

Florida, address. The service by hand was not successful.

Thereafter, the Department published a Notice of Action in Brevard

County, Florida, in the Florida Today newspaper for four

consecutive weeks beginning on October 2, 2017.

7. On November 8, 2017, Respondent called the Department.

He reached Kristen Summers. Ms. Summers is the Department

attorney assigned to Respondent Ó s case and work s in the

Department Ó s Prosecution Services section. During the call,

Respondent expressed to Ms. Summers that he had not received the

A dministrative Complaint. Respondent also apprised Ms. Summers

that he had a new mailing address of 1946 Otterbein Ave nue ,

Apartment 604, Cocoa, Florida 39296.

8. That same day, November 8, 2017, Ms. Summers arranged

for the Department to mail the Adminis trative Complaint, together

with an Election of Rights form, to Respondent at his new address

of 1946 Otterbein Ave nue , Apartment 604, in Cocoa, Florida.

9. At the final hearing, Respondent admitted that he

received the Administrative Complaint, as well a s the Election of

Rights form, on November 20, 2017.

10. The Administrative Complaint included a NOTICE OF

RIGHTS , which stated:

A request for petition for an administrative

hearing must be in writing and must be

received by the Department within 21 days

from the day Respondent received the

Administrative Complaint, pursuant to

Rule 28 - 106.111(2), Florida Administrative

Code. If Respondent fails to request a

hearing within 21 days of receipt of this

Administrative Complaint, Respondent waives

the right t o request a hearing on the facts

alleged in the Administrative Complaint

pursuant to Rule 28 - 106.111(4), Florida

Administrative Code.

11. The Election of Rights form included a provision , which

stated:

In the event that you fail to make an

election in th is matter within twenty - one

(21) days from receipt of the Administrative

Complaint, your failure to do so may be

considered a waiver of your right to elect a

hearing in this matter, pursuant to Rule 28 -

106.111(4), Florida Administrative Code, and

the Board may proceed to hear your case.

12. Based on the receipt date of November 20, 2017, 21 days

after Respondent received the Administrative Complaint was

December 11, 2017.

13. At the final hearing, Ms. Summers conveyed that she

further communicated with R espondent b etween November 20, 2017,

and December 11, 2017. During their conversation, Ms. Summers

notified Respondent that the Department had not received his

Election of Rights form. She also stressed to Respondent that, in

order to contest the Adminis trative Complaint, he must submit a

written request to the Department before the expiration of the

21 - day deadline.

14. In response to Ms. Summers Ó remarks , Respondent claimed

that he had faxed an Election of Rights form to the Department.

Thereafter, Ms. Summers Ð never looked harder Ñ to locate a fax from

Respondent. After a thorough search, however, she concluded that

the Department had not received Respondent Ó s Election of Rights

form, or any other document requesting an administrative hearing,

on o r before December 11, 2017.

15. Despite the fact that she had no record that Respondent

had timely submitted an Election of Rights form by December 11,

2017, Ms. Summers magnanimously agreed to extend the deadline for

Respondent to file a written request for a hearing. At the final

hearing, Ms. Summers explained that during her communications

with Respondent, he expressed his desire to contest the

Administrative Complaint. However, for some reason his attempt

to do so had been unsuccessful. Therefore, i n December 2017 (but

after December 11, 2017), Ms. Summers told Respondent that, if he

still wished to dispute the allegations against him, she would

accept his Election of Rights form . Ms. Summers did not give

Respondent a specific deadline in which to c omply.

16. By March 2018, however, after waiting approximately

three months, Ms. Summers still had not received Respondent Ó s

Election of Rights form. She determined that she could not

extend the deadline any longer.

17. Therefore, on March 20, 2018, M s. Summers sent a letter

to Respondent at all of his known addresses via Certified U.S.

M ail. In her letter, Ms. Summers wrote that the Department Ó s

records indicated that Respondent had received the Administrative

Complaint on November 20, 2017. However , the Department still

had no evidence that he had submitted the Election of Rights

form, or any other responsive pleading, contesting the

Administrative Complaint. The letter then specifically

instructed Respondent to return the Election of Rights form t o

Ms. Summers Ó office Ð via mail, fax, or electronic mail within ten

days of the mailing of this letter. Ñ Ms. Summers concluded her

letter by warning Respondent that Ð [f]ailure to return the

Election of Rights form within this period of time will result in

your case being forwarded to the Board of Nursing for

determination of waiver and entry of a final order. Ñ Ten days

from the date of Ms. Summers Ó letter was March 30, 2018.

18. With her letter, Ms. Summers included another copy of

the Administrative C omplaint and the Election of Rights form .

Both the letter and the Election of Rights form included

Ms. Summers Ó address, telephone number, and fax number at the

Department.

19. On March 28, 2018, Respondent received, and signed for,

Ms. Summers Ó lette r at his address on 1946 Otterbein Ave nue in

Cocoa, Florida.

20. On April 11, 2018, 22 days after the date of

Ms. Summers Ó letter (and 14 days after Respondent signed for the

letter) , the Department received, in the mail, an Election of

Rights form com pleted by Respondent. On the form, Respondent

indicated that he disputed the allegations of material facts

contained in the Administrative Complaint. Respondent also

wrote:

I have been cleared from [the Department of

Children and Families] and a settleme nt has

been reached [with] Titusville Rehabilitation

and Nursing Center. I have been going thru

some [sic] much and I Ó m so anxious to get

back [to] my profession and what I love to

do. I was with this company for 10 1/2

years. I Ó ve suffered enough humil ity and

false allegations.

21. With his Election of Rights form, Respondent included a

letter, dated December 22, 2017, entitled ACKNOWLEDGMENT OF

RECEIPT OF SETTLEMENT CHECK (the Ð Acknowledgment Letter Ñ ). The

body of the Acknowledgment Letter, which wa s prepared by a law

firm, recorded that Anthony Chambers (Respondent) acknowledged

receipt of a check to settle the matter of Ð Anthony Chambers

(SEIU - 1199) v. Fl - Titusville Rehabilitation and Nursing Center. Ñ

22. At the final hearing, Respondent ferventl y declared

that he is innocent of the underlying allegations of misconduct

at the Titusville Rehabilitation & Nursing Center. Respondent

professed that the Florida Department of Children and Families

has cleared him of all wrongdoing. Therefore, he was e xtremely

frustrated that the Department continues to pursue this matter,

which is preventing him from returning to work as a CNA.

23. Respondent testified that he sent proof to the

Department before April 2018 that he did not commit the alleged

unprof essional misconduct . At the final hearing, Respondent

explained that his proof was the Acknowledgment Letter.

24. As stated above, the Acknowledgment Letter was dated

December 22, 2017. When confronted with this fact at the final

hearing, Respondent c onceded that he did not provide this letter

to the Department until after that date. However, he insisted

that he submitted it before Christmas via Certified Mail.

Respondent did not offer evidence to support this statement.

25. Conversely, Ms. Summer s maintained that the Department

did not receive any documents from Respondent in December 2017.

More importantly, Ms. Summers testified that the Department did

not receive an Election of Rights form from Respondent until

April 11, 2018. Respondent did n ot dispute Ms. Summers Ó

representation that the first time he submitted his Election of

Rights form was in April 2018.

26. Based on the evidence set forth at the final hearing,

the Department established that Respondent did not file a petition

requesti ng administrative review within 21 days of receipt of the

Administrative Complaint. Further, Respondent did not prove that

he may circumvent the filing deadline based on the defense of

equitable tolling. Therefore, Respondent Ó s petition for an

evidentiar y hearing must be dismissed.

CONCLUSIONS OF LAW

27. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to sections 120.569 and

120.57(1), Florida Statutes.

28. In the Administrative Complaint, the Department seeks

to discipline Respondent for committing Ð unprofessional conduct Ñ

as defined by Board of Nursing rules. See §§ 464.018(1)(h)

and 464.204(1)(b), Fla. Stat. ; and Fla. Admin. Code R. 64B9 -

8.005(13).

29. The Department Ó s action to discipline Respondent is

pe nal in nature. Accordingly, the Department bears the burden of

proving the grounds for disciplinary action by clear and

convincing evidence. Dep Ó t of Banking & Fin., Div. of Sec. &

Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla.

1996); s ee also Fla. Dep Ó t of Child. & Fams. v. Davis Fam. Day

Care Home , 160 So. 3d 854, 856 (Fla. 2015).

30. Clear and convincing evidence is a heightened standard

that Ð requires more proof than a Ò preponderance of the evidence Ó

but less than Ò beyond and to the exclusion of a reasonable

doubt. ÓÑ Clear and convincing evidence is defined as an

intermediate burden of proof that:

requires that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

test imony must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or conviction,

without hesitancy, as to the tru th of the

allegations sought to be established.

S. Fla. Water Mgmt. v. RLI Live Oak, LLC , 139 So. 3d 869, 872 - 73

(Fla. 2014)(quoting Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla.

4th DCA 1983)). Ð Although this standard of proof may be met where

the evid ence is in conflict . . . it seems to preclude evidence

that is ambiguous. Ñ Westinghouse Elec . Corp. v. Shuler Bros. , 590

So. 2d 986, 988 (Fla. 1991).

31. Before reviewing the substance of the Administrative

Complaint, however, the Department asserts tha t Respondent waived

his right to an evidentiary hearing because he failed to timely

file a petition for hearing . Accordingly, the legal issue to

determine in this matter is whether Respondent Ó s petition (the

Election of Rights form) submitted to the Depar tment on April 11,

2018, should be dismissed as untimely filed . O r , whether

Respondent may circumvent the filing deadline based on the defense

of equitable tolling.

32. Unless otherwise provided by law, persons seeking a

hearing regarding an agency decis ion shall file a petition for

hearing with the agency within 21 days of receipt of the agency Ó s

written notice. Fla. Admin. Code R. 28 - 106.111(2). Any person

who fails to file a written request for a hearing within 21 days

waives the right to request a h earing on such matters. Fla.

Admin. Code R. 28 - 106.111(4). A request for hearing that has

been untimely filed shall be dismissed. § 120.569(2)(c), Fla.

Stat.

33. Filing Ð shall mean received by the office of the agency

clerk during normal business hours . Ñ Fla. Admin. Code

R. 28 - 106.104(1). As detailed above, to meet with the 21 - day

filing requirement, Respondent Ó s petition for hearing was to be

received by the Department no later than December 11, 2017. The

undisputed facts establish that the Departm ent received

Respondent Ó s petition (the Election of Rights form) on April 11,

2018. Therefore, pursuant to section 120.569(2)(c), Respondent Ó s

petition for hearing must be dismissed. See Cann v. Dep Ó t of

Child. and Fam. Servs. , 813 So. 2d 237 (Fla. 2d DC A 2002) ; and

Whiting v. Fla. Dep Ó t of Law Enf. , 849 So. 2d 1149 (Fla. 5th DCA

2003).

34 . Notwithstanding the above, however, t he doctrine of

equitable tolling m ay excuse an untimely filed petition for

hearing under the appropriate facts. § 120.569(2)(c), Fla.

Stat. ; and Fla. Admin. Code R. 28 - 106.111(4). See Williams v.

Dep Ó t of Corr. , 156 So. 3d 563, 565 (Fla. 5th DCA 2015)( Ð The

doctrine of equitable tolling can be applied to extend an

administrative filing deadline. Ñ ).

35. Under the doctrine of equi table tolling, a late - filed

petition should be accepted when a party Ð has been misled or

lulled into inaction, has in some extraordinary way been

prevented from asserting his rights, or has timely asserted his

rights mistakenly in the wrong forum, Ñ provide d that the opposing

party will suffer no prejudice. Machules v. Dep Ó t of Admin. , 523

So. 2d 1132, 1134 (Fla. 1988); Madison Highlands, LLC v. Fla.

Hous. Fin. Corp. , 220 So. 3d 467, 472 (Fla. 5th DCA 2017).

36. Based on the competent substantial evidence in the

record, Respondent failed to establish a defense of equitable

tolling of the 21 - day filing deadline.

37. Initially, the Department Ó s Notice of Rights and the

Election of Rights form explicitly informed Respondent that he

had 21 days to file a wr itten request for an administrative

hearing with the Department. The Department Ó s notice was proper,

and was reinforced by the instructions Ms. Summers provided to

Respondent during their telephonic communication. In addition,

the fact that Respondent ca lled the Department to discuss the

Administrative Complaint establishes that he knew the proper forum

in which to submit his request.

38. Further, during the final hearing, Respondent did not

offer any credible explanation as to why he failed to timely file

a written petition for hearing. Neither did he establish that he

was misled or lulled into inaction, was prevented from asserting

its rights in some extraordinary way, or that he timely asserted

his rights in the wrong forum. On the contrary, Ms. Su mmers

credibly testified that she specifically explained to Respondent

when, where, and how to submit his Election of Rights form in

order to meet the filing deadline of December 11, 2017.

39 . The undersigned finds this matter analogous to

Riverwood Nur sing Center , LLC v. Ag ency for Health Care

Admin istration , 58 So. 3d 907 (Fla. 1st DCA 2011) . In Riverwood ,

the day after the deadline for filing a request for hearing had

expired , an agency attorney agreed to accept a belated petition.

The petitioner th en promptly filed its petition one day after the

21 - day deadline. The agency, however, issued an order denying

the request for hearing as untimely. The court found no merit in

petitioner Ó s argument that the filing deadline was equitably

tolled because th e petitioner Ð does not allege that any

representative of [the agency] extended the deadline by agreement

before the deadline expired . Ñ Riverwood , 58 So. 3d at 910. See

also Xerox Corp. v. Fla. Dep Ó t of Prof Ó l Reg. , 489 So. 2d 1230,

1 231 (Fla. 1st DCA 198 6)(finding that Ð the informal and imprecise

oral communications which [the protestor] has alleged Ñ were

Ð insufficient in form and substance to overcome the effect of the

prior formal notice as to the necessity of a timely protest. Ñ ) ;

Whiting , 849 So. 2d 11 49, 1151 (Fla. 5th DCA 2003)(holding that

the appellant Ó s Ð mistaken belief as to when the time period ended Ñ

was insufficient to support a claim of equitable tolling); and

Jancyn Mfg. Corp. v. State, Dep Ó t of Health , 742 So. 2d 473, 476

(Fla. 1st DCA 1999) (wherein the court refused to apply the

equitable tolling doctrine where the failure Ð was the result of

appellant Ó s own inattention, and not the result of a mistake or

agency misrepresentation Ñ ).

40. As in Riverwood , the Department (Ms. Summers) did not

a gree to extend the 21 - day time period until after the filing

deadline had expired. Consequently, Respondent could not have

detrimentally relied upon the Department Ó s representation that it

would accept his Election of Rights form after the filing deadline

of December 11, 2017. 2/

41 . Respondent has alleged nothing to excuse him from

following the clear, written directive contained in the NOTICE OF

RIGHTS and the Election of Rights form. Accordingly, because

section 120.569(2)(c) compels the dismissal of u ntimely petitions,

and because equitable tolling provides no exception in this case,

Respondent Ó s request for an evidentiary hearing to dispute the

facts alleged in the Administrative Complaint must be dismissed.

RECOMMENDATION

Based on the foregoing Fi ndings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Department of Health

enter a final order dismissing Respondent Ó s request for an

administrative hearing as untimely filed.

DONE AND ENTERED this 13 th day of February , 2019 , in

Tallaha ssee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13 th day of February , 2019 .

ENDNOTE S

1/ Unless otherwise stated, all statutory references are to the

2018 codification of the Florida Statutes.

2/ Even i f Ms. Summers Ó March 20, 2018, letter could be

considered an extension of the 21 - day deadline, Respondent failed

to file his Election of Rights form until after the additional

time period (10 days) had expired.

COPIES FURNISHED:

Anthony Chambers

Apartm ent 604

1946 Otterbein Avenue

Cocoa, Florida 32926

Ross Daniel Vickers, Esquire

Florida Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Christina Michelle Smiekle, Esquire

Florida Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

(eServed)

Shannon Revels, Agency Clerk

Florida Department of Health

Bin A - 05

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1703

(eServed)

Louise Wilhite - St Laurent, Interim General Counsel

Florida Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

State Surgeon General

Florida Department of Health

Bin A - 00

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

wil l issue the Final Order in this case.